Research On The Construction Of Effective Legal Aid Standard For Duty Lawyers

Duty lawyer system is an important part of China’s legal aid system and plays an important role in China’s legal aid.As a professional legal helper,the lawyer on duty is very important to safeguard the legitimate rights and interests of the accused.With the rapid advancement of the lenency system of confesson and punshment,the duty lawye system has aso ushered in a certain development opportunity.Relevant laws and regulations have made provisions around the identity positioning,scope of rights,working procedures and external guarantee mechanism of the duty lawyer,which has laid a legislative foundation for the development of the duty lawyer system.Wth the promulgation of the legal ad law of the peope’s Republc of China,the state has furher improved China’s legal aid system,but most of the existing norms focus on improving the legal aid system and ignore the development and improvement of the duty lawyer system to a certain extent.The research of experts and scholars on the duty lawyer system mostly focuses on the debate on the identity positioning of the duty lawyer,the scope of empowerment,operation procedures and the way of rights protection,and rarely focuses on the standard of effective legal assistance.After all,the lawyer on duty only plays a role similar to "emergency doctor",and the real legal help depends on the legal aid lawyer or defense lawyer.The role played by the duty lawyer directly determines its exposure in the academic and practical circles.At present,the academic and theoretical circles are much more interested in studying the effective defense of the defense lawyer than the effective legal help of the duty lawyer.Too little attention can hardly hide the new problems of effective legal assistance of lawyers on duty in judicial practice.The ever-changing judicial practice has exposed some problems existing in the operation of the current duty lawyer system.The lack of clear and specific identification standards for the effective legal assistance of lawyers on duty seriously affects the lawyers on duty to provide effective legal assistance to the accused,and then restricts the further development of the lawyer on duty system.Firstly,the concept of effective legal assistance of lawyers on duty is vague,which can not provide preconditions for the establishment of standards.At present,China lacks a clear and specific concept for the effective legal assistance of lawyers on duty,let alone a clear and specific standard.For the concept of effective legal assistance,China can learn from foreign experience,summarize and improve it,develop our own concept,and construct our effective legal assistance standard based on the developed concept.Secondly,there are defects in the main elements of the duty lawyer system.The defects of the main elements mainly include the unreasonable composition of the duty lawyer,the uneven distribution of the main area,and the strong formalization of the main responsibility.The defects in the content elements are mainly reflected in the difficulty in the effective implementation of the right to mark papers,the right to meet and the right to put forward opinions.The deficiency of external guarantee mechanism is mainly reflected in the low pay on duty,heavy work tasks and the lack of relief mechanism.The defects of the three elements are the main difficulties that restrict the construction of the standard of effective legal assistance for lawyers on duty in China.The construction of the effective legal aid standard of duty lawyers in China can learn from the effective legal aid standard established in American plea bargaining,that is,"lawyer standard" and "damage result standard".The United States established the definition of the standard of invalid legal aid through Strickland v.Washington,from which it introduced the standard to measure the effectiveness of legal aid in American plea bargaining,and then provided reference for the construction of the standard of effective legal aid for duty lawyers in China.The construction of the standard of effective legal assistance of lawyers on duty has dual value in theory and practice.The establishment of the standard can realize the relative balance of the power of the prosecution and the defense in the criminal prosecution activities,ensure the voluntariness and legitimacy of the defendant’s confession and punishment in the case of confession and punishment,and balance the conflict between the punishment of crime and the protection of human rights values.In view of the difficulties existing in the construction of the standard of effective legal assistance of duty lawyers in China,the standard of effective legal assistance of duty lawyers in China should be constructed from both internal and external standards.On the internal standard,the lawyer qualification standard and the lawyer responsibility standard;On the external standard,the sentencing result standard,the peer evaluation standard and the aided person evaluation standard provide a judgment basis for judging whether the legal help provided by the lawyer on duty belongs to effective legal help through the dual unity of internal and external standards.